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The National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013

Type Scottish-Statutory-Instrument

Publication 2013-05-28

Last updated 2025-10-31

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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(7) In a case within paragraph (5)(b) or (c), the rate of pension in respect of the dependent child or children for the period of 6 months beginning with the deceased’s death is equal to—

(a) in the case of a deceased active member, the rate of the deceased’s pensionable pay at the date of death; and

(b) in the case of a deceased non-contributing member, the rate of the deceased’s reckonable pay.

Amount of surviving child's pension: pensioner members

2.E.11

(1) This regulation applies for determining the annual amount of the pension payable under regulation 2.E.8(1) (surviving dependent child’s pension) if at the date of death the deceased was a pensioner member of this Section of the scheme who was not also an active member or a non-contributing member.

(2) Subject to paragraphs (5), (6) and (7), that amount is the appropriate fraction of the basic death pension.

(3) In this regulation, “the basic death pension” means the greater of—

(a) 75% of the deceased’s annual pension (disregarding any additional pension); and

(b) 75% of the annual pension to which the deceased would have been entitled if the deceased had been entitled to count 10 years’ pensionable service (disregarding any additional pension),

and, in the case of a 2008 Section Optant, this is subject to regulation 2.K.24 (children’s pensions payable on the death of a 2008 Section Optant who is in receipt of a lower tier ill health pension under regulation E3 of the 2011 Regulations) and, in the case of a Waiting Period Joiner, this is subject to regulation 2.L.5 (children’s pensions payable on the death).

(4) In this regulation “the appropriate fraction” means—

(a) if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult dependant’s pension is payable under regulation 2.E.1—

(i) one-quarter if there is only one dependent child; and

(ii) one-half if there are two or more dependent children;

(b) if there is such a parent or spouse or civil partner of a parent, but no surviving adult dependant’s pension is payable under regulation 2.E.1—

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are two or more dependent children; and

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are two or more dependent children.

(5) If—

(a) a surviving adult dependant’s pension is payable under regulation 2.E.1; and

(b) there is a dependent child who is not dependent on the person entitled to that pension,

the rate of the pension in respect of that child for the first three months after the deceased’s death is equal to the rate of the member’s pension at the date of death (disregarding any additional pension).

(6) In a case within paragraph (4)(b) or (c), the rate of the pension in respect of the dependent child or children for the period of 6 months beginning with the deceased’s death is equal to the greater of—

(a) the rate of the member’s pension at the date of death disregarding any reduction made under Chapter 2.H (abatement) and any additional pension; and

(b) the amount of children’s pension that would otherwise be payable under these Regulations.

(7) If the deceased member’s pension was payable under regulation 2.D.4 (early payment of pension with actuarial reduction), the reference in paragraph (3)(a) and (b) to the member’s pension is a reference to the amount that the member’s pension would have been if it had been calculated without the reduction mentioned in paragraph (2)(b) of that regulation.

(8) For the purposes of paragraphs (1) and (2), any reduction in the member’s pension under regulation 2.D.14 (general option to exchange part pension for lump sum) and regulation 2.K.12 (amount of pension and lump sum to be paid to a 2008 Section Optant) is to be ignored.

Amount of surviving child's pension: deferred members

2.E.12

(1) This regulation applies for determining the annual amount of the pension payable under regulation 2.E.8(1) (surviving dependent child’s pension) if at the date of death the deceased was a deferred member of this Section of the scheme who was not also an active member, a non-contributing member or a pensioner member.

(2) That amount is the appropriate fraction of the basic death pension.

(3) In this regulation, “the basic death pension” means—

(a) if the deceased died within 12 months after ceasing to be an active member or a non-contributing member, the amount that would be the basic death pension for the purposes of regulation 2.E.10 (amount of surviving child’s pension: active members and non-contributing members) if the deceased had died on the day of so ceasing (disregarding any additional pension); and

(b) otherwise, the greater of—

(i) 75% of the pension to which the deceased would have been entitled if the deceased had become entitled to a pension under regulation 2.D.1 (normal retirement pensions) on the date of death (disregarding any additional pension); and

(ii) 75% of the pension to which the deceased would have been entitled if the deceased had become so entitled and the pension had been calculated on the assumption that the member was entitled to 10 years’ pensionable service (disregarding any additional pension),

(4) In this regulation “the appropriate fraction” means—

(a) if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult’s pension is payable—

(i) one-quarter if there is only one dependent child; and

(ii) one-half if there are two or more dependent children; and

(b) otherwise—

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are two or more dependent children.

Amount of surviving child's pension: recent leavers

2.E.13

(1) This regulation applies for determining the annual amount of the pension payable under regulation 2.E.8(1) (surviving dependent child’s pension) if at the date of death the deceased was a recent leaver (within the meaning of regulation 2.E.6(3) (recent leavers)).

(2) That amount is the appropriate fraction of the basic death pension.

(3) In this regulation—

“the basic death pension” means 75% of the pension to which the deceased would have been entitled if the deceased had become entitled to— a pension under regulation 2.D.8(5) (early retirement on ill health: active members and non-contributing members) on the date of death; or if greater, the amount that the member’s pension would have been if it had been based on 10 years’ pensionable service (disregarding any additional pension); and

“the appropriate fraction” means— if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult’s pension is payable— one-quarter if there is only one dependent child; and one-half if there are two or more dependent children; and otherwise— one-third if there is only one dependent child; and two-thirds if there are two or more dependent children.

Amount of surviving child's pension: re-employed pensioners

2.E.14

(1) This regulation applies for determining the annual amount of a pension payable under regulation 2.E.8(1) (surviving dependent child’s pension) if at the date of death the deceased was an active member or a non-contributing member who was also a pensioner member of this Section of the scheme.

(2) If there is no surviving adult dependant, the rate of the pension in respect of the dependent child or children for the period of 6 months beginning with the deceased’s death is equal to the sum of—

(a) in the case of—

(i) a deceased active member, the rate of the deceased’s pensionable pay at the date of death; and

(ii) a deceased non-contributing member, the rate of the deceased’s reckonable pay; and

(b) the rate of the pension being received by the deceased at the date of death (after taking account of any abatement under Chapter 2.H).

(3) Subject to paragraph (5), except where a pension is payable at the rate mentioned in paragraph (2), the pension in respect of the member’s later service must be paid as the appropriate fraction of 75% of the rate of pension described in—

(a) regulation 2.D.8(5) (early retirement on ill health: active members and non-contributing members) if the deceased has not reached age 65 on the date of death; or

(b) regulation 2.D.1 (normal retirement pensions) if the deceased has reached age 65 on the date of death.

(4) In this regulation “appropriate fraction” has the meaning given in regulation 2.E.10(5) (amount of surviving child’s pension: active members and non-contributing members).

(5) If any dependent child was a dependent child both at the time when the pensionable service in respect of which the pension is payable ceased and at the date of death, the annual amount of the pension in respect of the dependent child or children is the sum of—

(a) the annual amount that would be payable in respect of the child under regulation 2.E.10 (active members and non-contributing members) as a result of the member dying whilst an active member or a non-contributing member if that regulation applied to members who are also pensioner members (disregarding the pensionable service in respect of which the pension is payable (“the pension service”) and any additional pension); and

(b) the annual amount that would be payable in respect of the child under regulation 2.E.11 (amount of surviving child’s pension: pensioner members) as a result of the member dying whilst a pensioner member if that regulation applied to members who are also active members or non-contributing members (having regard only to the pension service and disregarding any additional pension).

(6) If, apart from this paragraph, the sum of—

(a) the relevant service (as defined in regulation 2.E.10(4)) for the purposes of the calculation of the annual amount referred to in paragraph (5)(a); and

(b) the pension service,

would be less than 10 years’ pensionable service, the deceased’s relevant service for the purposes of that calculation is increased by the length of the shortfall.

Amount of surviving child's pension: power to increase

2.E.15

(1) This regulation applies if—

(a) a member dies leaving a dependent child or children;

(b) there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children; and

(2) The Scottish Ministers may increase the amount of the pension that would otherwise be payable under this Chapter in respect of the dependent child or children.

(3) The increased amount may not exceed the amount that would have been payable under this Chapter if there had been no such surviving parent or spouse or civil partner of a parent.

Lump sum death benefits

Lump sum benefits on death: introduction

2.E.16

(1) A lump sum is payable in accordance with this Chapter if—

(a) a member, a recent leaver or a deferred member dies before reaching age 75; or

(b) a pensioner member, on or after reaching age 75, dies except in the circumstances described in regulation 2.E.21 (pension payable when member dies on or after reaching age 75).

(2) Paragraph (1) is subject to the following provisions of this Chapter.

(3) This regulation does not apply if—

(a) the member is—

(i) a pensioner member; or

(ii) a pension credit member who dies after any benefits attributable to the pension credit have become payable; and

(b) the death takes place more than 5 years after the member’s pension becomes payable.

Amount of lump sum: single capacity members and recent leavers (disregarding regulation 2.D.5 employments)

2.E.17

(1) The lump sum payable on the death of an active member or a non-contributing member, who is not also a deferred member or a pensioner member, is an amount equal to twice the member’s reckonable pay and, in the case of a 2008 Section Optant, this is subject to regulation 2.K.23 (lump sum payable on the death of a 2008 Section Optant who is in receipt of a lower tier ill health pension under regulation E3 of the 2011 Regulations) and, in the case of a Waiting Period Joiner, this is subject to regulation 2.L.4 (lump sum payable on death).

(2) Subject to regulations 2.E.21 (pension payable when member dies on or after reaching age 75) and 2.E.22 (payment of lump sums or pensions on death), the lump sum payable on the death of a pensioner member, who is not also an active member, a non-contributing member or a deferred member, is, in respect of each pension to which the member is entitled, the lesser of—

(a) an amount equal to 5 times the annual rate of the pension (other than any additional pension), less the amount of the pension payments already made to the member; and

(b) an amount equal to twice the member’s reckonable pay by reference to which the pension was calculated, less the aggregate of—

(i) any lump sum paid to the member when the pension came into payment as a result of the member exercising the option under regulation 2.D.14 (general option to exchange part of pension for lump sum); and

(ii) in the case of a 2008 Section Optant, the lump sum paid to the Optant under regulation 2.K.12 (amount of pension and lump sum to be paid to a 2008 Section Optant).

(3) The lump sum payable on the death of a deferred member, who was not an active member, a non-contributing member or a pensioner member, is an amount equal to the member’s deferred annual pension, multiplied by 2.25.

(4) The lump sum payable on the death of a recent leaver is an amount equal to the deferred annual pension to which the person would have been entitled if the person were entitled to such a pension calculated by reference to the pensionable service the recent leaver was entitled to count in the service that has ceased, multiplied by 2.25.

(5) In this regulation, references to a member’s deferred annual pension are to the annual pension, in respect of any period of pensionable service, to which the member would have been entitled under regulation 2.D.1 (normal retirement pensions) if on the date of death the member had become entitled to such a pension (other than any additional pension).

(6) The reference in paragraph (2)(a) to the annual rate of the member’s pension is to the member’s pension after it has been reduced to take account of—

(a) the exercise by the member of an option under regulation 2.D.14; and

(b) in the case of a 2008 Section Optant, the lump sum paid to the Optant under regulation 2.K.12 (amount of pension and lump sum to be paid).

(7) If a pensioner member exercised the option under regulation 2.D.17 (election to allocate pension), the reference in paragraph (2)(a) to the amount of the pension payments already made to the member is a reference to the amount of the pension payments that would have been made apart from the election.

(8) For the purposes of this regulation, the fact that a person—

(a) was an active member or a non-contributing member in service in an employment in respect of which the member has exercised the option under regulation 2.D.5 (partial retirement: members aged at least 55);

(b) is a deferred member as a result of service in an employment in respect of which the member has exercised that option; or

is ignored.

Amount of lump sum: dual capacity members (disregarding regulation 2.D.5 employments)

2.E.18

(1) Paragraph (2) applies for determining the lump sum payable by virtue of this regulation on the death of a member who—

(a) was an active member or a non-contributing member otherwise than in service in an employment in respect of which the member had exercised the option under regulation 2.D.5 (partial retirement: members aged at least 55); and

(b) was also a pensioner member.

(2) Subject to paragraph (4), the lump sum is an amount equal to the sum of—

(a) 5 times the annual rate of pension—

(i) payable under regulation 2.D.8(5) (early retirement on ill health: active members and non-contributing members), if the deceased had not reached age 65; or

(ii) payable under regulation 2.D.1 (normal retirement pensions), if the deceased had reached age 65,

to which the member would have been entitled—

(aa) in the case of a deceased active member, at the member’s date of death; and

(bb) in the case of a deceased non-contributing member, on the last day of the member’s pensionable service; and

(b) in respect of each pension to which the person has been entitled for less than 5 years, the lesser of—

(i) 5 times the annual rate of the pension payable after exercising any option under regulation 2.D.14 (general option to exchange part of pension for lump sum), less the amount of the pension payments already made to the member; and

(ii) an amount equal to twice the member’s reckonable pay by reference to which the pension was calculated, less any lump sum paid to the member when the pension came into payment as a result of the member exercising the option under regulation 2.D.14.

(3) If the pensioner member exercised the option under regulation 2.D.17 (election to allocate pension), the reference in paragraph (2)(b) to the amount of the pension payments already made to the member is a reference to the amount of the pension payments that would have been made apart from the election.

(4) In the case of a 2008 Section Optant—

(a) the reference to the annual rate of pension in paragraph (2)(b)(i) is to the annual rate of pension after it has been reduced to take account of the lump sum paid to the Optant under regulation 2.K.12 (amount of pension and lump sum paid to a 2008 Section Optant); and

(b) the amount of the Optant’s reckonable pay for the purposes of paragraph (2)(b)(ii) must be reduced by the aggregate of—

(i) the amount of the lump sum paid to the Optant under regulation 2.K.12; and

(ii) the lump sum under regulation 2.D.14 referred to in paragraph (2)(b)(ii).

Amount of lump sum: dual capacity members (members with pensions under regulation 2.D.5)

2.E.19

(1) Paragraph (2) applies for determining the lump sum payable by virtue of this regulation on the death of a member who—

(a) was an active member or a non-contributing member in service in an employment in respect of which the member has exercised the option under regulation 2.D.5 (partial retirement: members aged at least 55); and

(b) was a pensioner member by virtue of being entitled to a pension under that regulation.

(2) The lump sum is an amount equal to the sum of—

(a) twice the appropriate fraction of the member’s reckonable pay in that employment at the date of death; and

(b) if the member had been entitled to any pensions under regulation 2.D.5 for less than 5 years, the lesser of—

(i) the total of the guarantee amounts for each of those pensions (see paragraph (3)); and

(ii) the aggregate lump sum cap (see paragraph (4)),

and, in the case of a 2008 Section Optant, this is subject to regulation 2.K.23 (lump sum payable on the death of a 2008 Section Optant who is in receipt of a lower tier ill health pension under regulation E3 of the 2011 Regulations).

(3) The guarantee amount for a pension under regulation 2.D.5 is 5 times the annual rate of the pension at the date of death, less the amount of the pension payments already made to the member in respect of the pension.

(4) The aggregate lump sum cap is equal to twice the appropriate fraction of the reckonable pay by reference to which the pension to which the member became entitled on last exercising the option under regulation 2.D.5 (partial retirement: members aged at least 55) was calculated, less the total of any lump sums paid to the member—

(a) in exchange for pensions under regulation 2.D.5 as a result of the member exercising the option under regulation 2.D.14 (general option to exchange part of pension for lump sum); and

(b) in the case of a 2008 Section Optant, the lump sum paid to that Optant under regulation 2.K.12.

(5) In this regulation “the appropriate fraction” means—

$$D P S T D P S$ where— DPS is, where the member continues in pensionable service as an active member or a non-contributing member on the option day (or the last such option day if the option has been exercised more than once), the total number of days which do not form part of the specified percentage of pensionable service at the option day; and TDPS is the aggregate of DPS and the total number of days of pensionable service (at the option day or the last such option day if the option has been exercised more than once) which forms part of the specified percentage of pensionable service.$

Amount of lump sum: pension credit members

2.E.20

(1) The lump sum payable on the death of a pension credit member who dies before any benefits derived from the member’s pension credit have become payable is an amount equal to the amount of the annual pension to which the member would have become entitled under regulation 2.D.2 (pension credit members) if the member had reached age 65 on the date of death, multiplied by 2.25.

(2) The lump sum payable on the death of a pension credit member who dies after a pension under that regulation has become payable is equal to the lower of—

(a) the annual amounts of the pension that would have been payable to the member during so much of the period of 5 years beginning with the date on which the pension became payable as falls after the date of death; and

(b) the amount produced by the formula—

$$2 R P − C L S$ where— RP is the amount as at the valuation day of the reckonable pay of the debit member from whose rights the pension credit member’s pension credit is derived; and CLSis the amount of the lump sum (if any) paid to the pension credit member as a result of the member exercising the option under regulation 2.D.14 (general option to exchange part of pension for lump sum) on becoming entitled to the pension under regulation 2.D.2 (pension credit members).$

(3) For the purposes of paragraph (2), the annual amount of the pension is taken to be the sum of—

(a) the annual amount of the pension as at the beginning date for that pension; and

(b) the increase (if any) in that annual amount under the Pensions (Increase) Act 1971[^f00309] payable as at the date of death.

(4) In this regulation—

“valuation day” means the day referred to in section 29(7) (the pension and annuity requirements) of the 1999 Act; and

“the beginning date”, in relation to a pension, has the meaning given in section 8(2A) of the Pensions (Increase) Act 1971.

Pension payable when member dies on or after reaching age 75

2.E.21

(1) If, on or before 5th April 2011, a pensioner member or a pension credit member died—

(a) on or after reaching age 75; and

(b) before the fifth anniversary of the date on which the member’s pension became payable,

an annual pension, calculated in accordance with paragraph (2), is payable from the day following the date of the member’s death until the anniversary referred to in sub-paragraph (b).

(2) The pension payable under paragraph (1) is determined by—

(a) calculating the amount of the lump sum that would have been payable to the pensioner member or pension credit member under regulation 2.E.17(2) (single capacity members and recent leavers) or, as the case may be, regulation 2.E.20 (pension credit members) as if on the day the member died the member had not reached age 75; and

(b) converting any amount determined in sub-paragraph (a) to an annual pension payable for the period specified in paragraph (1), by reference to guidance and tables provided by the scheme actuary for the purpose.

(3) The “beginning date” of the pension calculated in paragraph (2) is, for the purposes of the Pensions (Increase) Act 1971, the day immediately following the date of death of the pensioner member or pension credit member.

(4) The pension calculated under this regulation is payable in accordance with regulation 2.E.22 (payment of lump sums or pensions on death).

Payment of lump sums or pensions on death

2.E.22

(1) A lump sum payable under regulation 2.E.16 (lump sum benefits on death) or a pension payable under regulation 2.E.21 (pension payable when member dies on or after reaching age 75) must be paid in accordance with this regulation.

(2) The lump sum or pension must be paid to the member’s personal representatives, except so far as it is payable to a different person or body under paragraph (4), (6) or (10).

(3) A member may give notice to the Scottish Ministers—

(a) specifying—

(i) the member’s personal representatives;

(ii) one or more other individuals; or

(iii) one incorporated or unincorporated body,

to whom the lump sum or pension is to be paid; and

(b) where two or more individuals are specified, specifying the percentage of the payment payable to each of them.

(4) If the member—

(a) has given notice under paragraph (3) specifying a person; and

(b) has not revoked that notice,

the lump sum or pension (or, as the case may be, the percentage of it specified in respect of the person) may be paid to the person, unless paragraph (5) or (7) applies.

(5) This paragraph applies if—

(a) the person specified in the notice has died before the payment can be made; or

(b) payment to that person is not, in the opinion of the Scottish Ministers, reasonably practicable.

(6) If the member—

(a) leaves a surviving adult dependant; and

(b) has not given notice under paragraph (3) or has revoked any notice so given,

the lump sum or pension may be paid to that person unless paragraph (7) applies.

(7) This paragraph applies if the person to whom the lump sum or pension (or a specified percentage of the lump sum or pension) would otherwise be payable has been convicted of an offence specified in regulation 2.J.8(2) (forfeiture of rights to benefit) and the Scottish Ministers have directed, as a consequence of that conviction, that the person’s right to a payment in respect of the member’s death is forfeited.

(8) A notice under paragraph (3)—

(a) must be given in writing; and

(b) may be revoked at any time by a further notice in writing.

(9) The Scottish Ministers may pay the lump sum to any person claiming to be the member’s personal representative or otherwise to fall within paragraph (3)(a), without requiring proof that the person is such a person concerned, if the lump sum does not exceed—

(a) £5,000; or

(b) any higher amount specified in an order made under section 6(1) of the Administration of Estates (Small Payments) Act 1965[^f00310] as the amount to be treated as substituted for references to £500 in section 1 of that Act.

(10) The member’s personal representatives may, as part of the distribution of the member’s estate, give irrevocable notice to the Scottish Ministers—

(a) specifying—

(i) one or more individuals; or

(ii) one incorporated or unincorporated body,

to whom the benefit of the pension under regulation 2.E.21 (pension payable when member dies on or after reaching age 75), from the date of receipt of the notice by the Scottish Ministers, is to be assigned; and

(b) where two or more individuals are specified under sub-paragraph (a)(i), specifying the percentage of the pension payable to each of them,

and the pension (or, as the case may be, the percentage of it specified in respect of the person) may be paid to the person or body, unless paragraph (11) applies.

(11) This paragraph applies if—

(a) the person specified in the notice has died before the payment can be made;

(b) payment to that person is not, in the opinion of the Scottish Ministers, reasonably practicable; or

(c) the person to whom the pension (or a specified percentage of the pension) would otherwise be payable has been convicted of an offence specified in regulation 2.J.8(2) (forfeiture of rights to benefits) and the Scottish Ministers have directed, as a consequence of that conviction, that the person’s right to a payment in respect of the member’s death is forfeited.

(12) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.20.

(13) In the case of a Waiting Period Joiner, this regulation is subject to regulation 2.L.2.

Tax treatment under the 2004 Act of lump sums payable on pensioners' deaths

2.E.23

(1) A pensioner’s lump sum (less any amount deducted under paragraph (4) where that applies) is to be treated for the purposes of the 2004 Act as a pension protection lump sum death benefit if the member has given the scheme administrator a statement in writing that any such lump sum is to be treated as such a benefit.

(2) In this regulation “pensioner’s lump sum” means—

(a) a lump sum payable under regulation 2.E.16 (lump sum benefits on death) to which regulation 2.E.17(2) (single capacity members and recent leavers) applies; or

(b) so much of a lump sum payable under regulation 2.E.16 as is calculated under regulation 2.E.18(2) (dual capacity members).

(3) Paragraph (4) applies if the person who is the scheme administrator for the purposes of section 206 (special lump sum death benefits charge) of the 2004 Act (“the administrator”) is liable for tax under that section in respect of a pension protection lump sum death benefit.

(4) The administrator may deduct from the lump sum the tax payable in respect of it.

Miscellaneous and general provisions

Death during period of absence

2.E.24

(1) This regulation applies if a person dies during a period when the person—

(a) is absent from work because of illness or injury;

(b) is on ordinary maternity leave;

(d) is on paternity leave or parental leave,

and the earnings used to calculate the person’s pensionable pay have ceased to be paid before the person’s death.

(2) Any benefits payable under this Chapter must be calculated as if the person had died in pensionable service on the day before those earnings ceased.

Polygamous marriages

2.E.25

(1) This regulation applies if—

(a) a member dies without leaving a surviving adult dependant; and

(b) at the date of death the member was married to one or more persons under a law which permits polygamy.

(2) If, had the member left a surviving adult dependant, any benefit would have been payable to the surviving adult dependant as such, that benefit is payable—

(a) if there is one such person, to that person; or

(b) if there are two or more such persons, to those persons in equal shares.

(3) Such a person’s or persons’ share of a pension is not to be increased on the death of any other such person.

Dual capacity membership: death benefits

2.E.26

(1) This paragraph applies if the deceased member was—

(a) a member of this Section of the scheme of two or more of the kinds specified in paragraph (2);

(b) a pensioner member in respect of two or more pensions; or

(2) The kinds of member are—

(a) an active member;

(b) a deferred member;

(d) a pension credit member.

(3) If paragraph (1) applies, the general rule is that—

(a) benefits are payable in respect of the member under this Chapter as if two or more members of the kinds in question had died (so that two or more pensions or lump sums are payable in respect of the one deceased member); and

(b) the amounts payable are determined accordingly.

(4) Paragraph (3) does not apply where specific provision to the contrary is made about a person to whom that paragraph would otherwise apply.

(5) In relation to the specific provision referred to in paragraph (4), see in particular—

(a) regulation 2.E.3 (amount of surviving adult’s pension: active members and non-contributing members);

(b) regulation 2.E.4 (amount of surviving adult’s pension: pensioner members);

(d) regulation 2.E.8 (surviving dependent child’s pension);

(e) regulation 2.E.14 (amount of surviving child’s pension: re-employed pensioners);

(f) regulation 2.E.16 (lump sum benefits on death: introduction);

(g) regulation 2.E.18 (amount of lump sum: dual capacity members (disregarding regulation 2.D.5 employments));

(h) regulation 2.E.19 (amount of lump sum: dual capacity members (members with pensions under regulation 2.D.5));

(i) regulation 2.E.21 (pension payable when member dies on or after reaching age 75); and

(j) Chapter 2.G (re-employment and rejoining the scheme).

(6) If a person who is a pension credit member is entitled to two or more pension credits—

(a) benefits are payable in respect of the person under this Chapter as if the person were two or more persons, each being entitled to one of the pension credits (so that two or more pensions or lump sums are payable in respect of the one pension credit member); and

(b) the amounts of those benefits are determined accordingly.

Guaranteed minimum pensions for surviving spouses and civil partners

2.E.27

(1) If a person who is the surviving spouse or civil partner of a deceased active, deferred or pensioner member has a guaranteed minimum pension under section 17 (minimum pensions for widows and widowers) of the 1993 Act in relation to benefits in respect of the deceased member under this Section of the scheme—

(a) nothing in this Part permits or requires anything that would cause requirements made by or under the 1993 Act in relation to such a person and such a person’s rights under a scheme not to be met in the case of the person;

(b) nothing in this Part prevents anything from being done which is necessary or expedient for the purposes of meeting such requirements in the case of the person; and

(2) If apart from this regulation—

(a) no pension would be payable to the surviving spouse or civil partner under this Chapter; or

(b) the weekly rate of the pensions payable would be less than the guaranteed minimum,

a pension the weekly rate of which is equal to the guaranteed minimum is payable to the surviving spouse or civil partner for life or, as the case may be, pensions the aggregate weekly rate of which is equal to the guaranteed minimum are so payable.

(3) Paragraph (2) does not apply to a pension that is forfeited—

(a) as a result of a conviction for treason; or

(b) in a case where an offence within regulation 2.J.8(2)(b) (forfeiture of rights to benefits) is committed.

CHAPTER 2.F — TRANSFERS

Transfers-out

Introduction: rights to transfer value payment

2.F.1

(1) This Chapter supplements the rights conferred by or under Chapter 4 (transfer values) of Part 4 of the 1993 Act.

(2) This Chapter is without prejudice to Chapter 4 (transfer values) and Chapter 5 (early leavers: cash transfer sums and contribution refunds) of Part 4 of the 1993 Act.

(3) Accordingly—

(a) a member to whom Chapter 4 of that Part applies (see section 93(1)(a) of that Act) is entitled to require the payment of a transfer value in respect of the rights to benefit that have accrued to or in respect of the member under this Section of the scheme; and

(b) a member to whom Chapter 5 of that Part applies (see section 101AA(1) of that Act) is entitled to a cash transfer sum or a contribution refund in accordance with that Chapter.

(4) Subject to paragraph (5) and the other provisions of this Chapter, any other member is entitled to require such a payment as if such rights had accrued to or in respect of the member by reference to the pensionable service the member is entitled to count under this Section of the scheme (and references in this Chapter to the member’s accrued rights or benefits are to be read accordingly).

(5) Paragraph (4) does not—

(a) give any rights to an active member;

(b) give any rights to a pensioner member in respect of the pension to which the member has become entitled; or

Applications for statements of entitlement

2.F.2

(1) A member who requires a transfer value payment to be made must apply in writing to the Scottish Ministers for a statement of the amount of the cash equivalent of the member’s accrued benefits under this Section of the scheme at the guarantee date (a “statement of entitlement”).

(2) In this Part, the “guarantee date” means any date that—

(a) falls within the required period;

(b) is chosen by the Scottish Ministers;

(d) is within the period of 10 days ending with the date on which the member is provided with the statement of entitlement.

(3) The member may withdraw the application for a statement of entitlement by notice in writing at any time before the statement is provided.

(4) In paragraph (2) “the required period” means—

(a) the period of three months beginning with the date of the member’s application for a statement of entitlement; or

(b) such longer period beginning with that date (but not exceeding 6 months) as may reasonably be required if, for reasons beyond the control of the Scottish Ministers, the requisite information cannot be obtained to calculate the amount of the cash equivalent.

(5) In counting the period of 10 days referred to in paragraph (2)(d), Saturdays, Sundays, Christmas Day, New Year’s Day and Good Friday are excluded.

Applications for transfer value payments: general

2.F.3

(1) A member who has applied for and received a statement of entitlement under regulation 2.F.2 (applications for statements of entitlement) may apply in writing to the Scottish Ministers for a transfer value payment to be made.

(2) On making such an application a member becomes entitled to a payment of an amount equal, or amounts equal in aggregate, to the amount specified in the statement of entitlement (or such other amount as may be payable by virtue of regulation 2.F.4(2) (applications for transfer value payments: time limits).

(3) In this Part such a payment is referred to as the “guaranteed cash equivalent transfer value payment”.

(4) The application must specify the pension scheme or other arrangement to which the payment or payments should be applied.

(5) The application must meet such other conditions as the Scottish Ministers may require.

(6) An application under this regulation may be withdrawn by notice in writing to the Scottish Ministers, unless an agreement for the application of the whole or part of the guaranteed cash equivalent transfer value payment has been entered into with a third party before the notice is given.

Applications for transfer value payments: time limits

2.F.4

(1) Subject to paragraph (4), an application under regulation 2.F.3(1) (applications for transfer value payments: general) must be made before the end of the period of three months beginning with the guarantee date, and the payment must be made no later than—

(a) 6 months after that date; or

(b) if it is earlier, the date on which the member reaches 65.

(2) If the payment is made later than 6 months after the guarantee date, the amount of the payment to which the member is entitled must be increased by—

(a) the amount by which the amount specified in the statement of entitlement falls short of the amount it would have been if the guarantee date had been the date on which the payment is made; or

(b) if it is greater and there was no reasonable excuse for the delay in payment, interest on the amount specified in the statement of entitlement, calculated on a daily basis over the period from the guarantee date to the date when the payment is made at an annual rate of 1% above the base rate.

(3) Paragraph (4) applies if—

(a) disciplinary or court proceedings against the member are begun within 12 months after the member leaves the employment which qualified the member to belong to this Section of the scheme; and

(b) it appears to the Scottish Ministers that the proceedings may lead to all or part of the member’s benefits being forfeited under regulation 2.J.8 (forfeiture of rights to benefit).

(4) The Scottish Ministers may defer doing what is needed to carry out what the member requires until the end of the period of three months beginning with the date on which those proceedings (including any proceedings on appeal) are concluded.

(5) In any case where a direction is given under regulation 2.J.8 for the forfeiture of a member’s benefits, this regulation applies as if the amount specified in the statement of entitlement were reduced by an amount equal to the value of the benefits forfeited, as determined by the scheme actuary.

(6) In respect of an applicant who does not fall within regulation 2.D.1(2) (normal retirement pensions)—

(a) whose application requires the guaranteed cash equivalent transfer value payment to be made to an occupational pension scheme or a personal pension scheme, an application under paragraph (1) may only be made if—

(i) the applicant became a member of that scheme not later than the end of the period of 12 months beginning with the day after the date on which the member ceased to be in the pensionable service in which the rights accrued (“the leaving date”); and

(ii) the application is made not later than—

(aa) the end of the period of 12 months beginning with the day on which the applicant became a member of that scheme; or

(bb) if the applicant became a member of that scheme on or before the leaving date, the end of the period of 12 months beginning with the day after the leaving date; and

(b) in any other case, an application under paragraph (1) may only be made before the end of the period of 12 months beginning with the day after the leaving date.

Ways in which transfer value payments may be applied

2.F.5

(1) A member may only require the Scottish Ministers to apply the guaranteed cash equivalent transfer value payment in one or more of the ways permitted under section 95 (ways of taking right to cash equivalent) of the 1993 Act.

(2) Paragraph (1) applies whether or not the member is entitled to a guaranteed cash equivalent transfer value payment under Chapter 4 (transfer values) of Part 4 of the 1993 Act.

(3) The whole of the guaranteed cash equivalent transfer value payment must be applied, unless paragraph (4) applies.

(4) The benefits attributable to—

(a) the member’s accrued rights to a guaranteed minimum pension; or

(b) the member’s accrued rights attributable to service in contracted-out employment on or after 6th April 1997,

is to be excluded from the guaranteed cash equivalent transfer value payment if section 96(2) (trustees or managers of certain receiving schemes or arrangements able and willing to accept a transfer payment only in respect of the member’s other rights) of the 1993 Act applies.

(5) A transfer payment may only be made to—

(a) a pension scheme that is registered under Chapter 2 (registration of pension schemes) of Part 4 of the 2004 Act; or

(b) an arrangement that is a qualifying recognised overseas pension scheme for the purposes of that Part (see section 169(2) (recognised charges) of the 2004 Act).

Calculating amounts of transfer value payments

2.F.6

(1) Subject to paragraphs (2), (3) and (5), the amount of the guaranteed cash equivalent transfer value payment is to be calculated and verified by the Scottish Ministers in accordance with the Occupational Pension Schemes (Transfer Values) Regulations 1996[^f00311].

(2) Before determining the factors to be used in the calculation of the member’s guaranteed cash equivalent transfer value payment, the Scottish Ministers must take advice from the scheme actuary.

(3) Subject to paragraph (5), if the amount calculated in accordance with paragraph (1) is less than the member’s minimum transfer value (if any), the amount of the guaranteed cash equivalent transfer value payment is to be equal to that value instead.

(4) In paragraph (3) “minimum transfer value” means—

(a) in the case of a person other than a 2008 Section Optant, the sum of—

(i) any transfer value payments that have been made to this Section of the scheme in respect of the person as a result of which the person is entitled to count any pensionable service under this Section of the scheme by reference to which the accrued rights subject to the transfer are calculated; and

(ii) any contributions paid by the person under Chapter 2.C (contributions) as a result of which the person is entitled to count such service; and

(b) in the case of a 2008 Section Optant, the sum of—

(i) any transfer value payments that have been made to this Section of the scheme in respect of the person as a result of which the person is entitled to count any pensionable service under this Section of the scheme by reference to which the accrued rights subject to the transfer are calculated;

(ii) any contributions paid by the person under Chapter 2.C as a result of which the person is entitled to count such service; and

(iii) the aggregate of any—

(aa) transfer value payments that have been made to the 1995 Section in respect of the Optant;

(bb) any contributions paid by the Optant under regulation D1 (contributions by members) of the 2011 Regulations in respect of pensionable employment in that Section on or before 31st March 2008; and

(cc) any payments made by the Optant under regulation Q1 (right to buy additional service) of the 2011 Regulations for the purchase of additional service,

which entitle the Optant to count, under Chapter 2.K of this Section of the scheme, any pensionable service by reference to which the accrued rights subject to the transfer are calculated.

(5) If the transfer value payment is made under the public sector transfer arrangements, the amount of the transfer value payment is to be calculated—

(a) in accordance with those arrangements rather than paragraphs (1) and (3); and

(b) by reference to the guidance and tables provided by the scheme actuary for the purposes of this paragraph that are in use on the date used for the calculation.

(6) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.12.

Effect of transfers-out

2.F.7

(1) If a transfer value payment is made under this Chapter in respect of a person’s rights under this Section of the scheme, those rights are extinguished.

Transfers-in

Right to apply for acceptance of transfer value payment from another scheme

2.F.8

(1) Subject to the provisions of this Chapter, an active member may apply for a transfer value payment in respect of some or all of the rights that have accrued to or in respect of the member under any kind of scheme or arrangement to which paragraph (2) applies, other than a FSAVC, to be accepted by this Section of the scheme.

(2) This paragraph applies to—

(a) an occupational pension scheme other than a corresponding health service scheme;

(b) a personal pension scheme;

(d) a corresponding 1995 scheme; and

(e) a corresponding 2008 scheme.

(3) A member who makes an application for a transfer value to be accepted by the Scottish Ministers in respect of the member’s rights under a corresponding 2008 scheme may not also make an application for a transfer value to be accepted in respect of the member’s rights under a corresponding 1995 scheme.

(4) Paragraph (1) does not apply to rights that are directly attributable to a pension credit.

(5) In this regulation “FSAVC” means—

(a) a scheme which—

(i) immediately before 6th April 2006 was approved by the Commissioners for Her Majesty’s Revenue and Customs by virtue of section 591(2)(h) (free-standing AVC schemes) of the Income and Corporation Taxes Act 1988[^f00312]; and

(ii) became a registered scheme for the purposes of the 2004 Act by virtue of Schedule 36 (pensions schemes etc: transitional provisions and savings) to that Act; or

(b) a scheme established on or after that date as a registered free-standing AVC scheme.

(6) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.13.

Procedure for applications under regulation 2.F.8

2.F.9

(1) An application under regulation 2.F.8 (right to apply for acceptance of transfer value payment from another scheme)—

(a) must be made in writing;

(b) must specify this Section of the scheme or arrangement from which the transfer value payment is to be made and the anticipated amount of the payment;

(c) except in the case of a member whose transfer value payment is from a corresponding health service scheme, may only be made during the period of one year beginning with the day on which the applicant becomes eligible to be an active member of this Section of the scheme;

(d) must be made before the applicant reaches age 65;

(e) if the Scottish Ministers so require, may only be made if the member has first requested a statement—

(i) in the case of a transfer made under the public sector transfer arrangements, of the service that the member will be entitled to count as a result of the transfer if the payment is accepted by the Scottish Ministers; and

(ii) in a case where the transfer is not made under those arrangements (including a transfer of rights from a corresponding 1995 scheme), of the service that member will be entitled so to count if the payment is so accepted by the Scottish Ministers within such period as is specified in the statement; and

(f) must meet such other conditions as the Scottish Ministers may require.

(2) A statement given to the member in pursuance of such a request as is mentioned in paragraph (1)(e)—

(a) in the case mentioned in paragraph (1)(e)(i), must inform the member of the effect (if any) of regulation 2.A.13 (restriction on pensionable pay used for calculating benefits in respect of capped transferred-in service) in the member’s case; and

(b) in the case mentioned in paragraph (1)(e)(ii), must specify such amount as is calculated in accordance with guidance and tables provided by the scheme actuary for the purpose.

Acceptance of transfer value payments

2.F.10

(1) If an application is duly made by a member under regulation 2.F.8 (right to apply for acceptance of transfer value payment from another scheme) the Scottish Ministers may accept the transfer value payment if such conditions as the Scottish Ministers may require are met, unless paragraph (6) applies.

(2) If the Scottish Ministers accept the payment—

(a) the member is entitled to count the appropriate period of pensionable service for the purposes of calculating benefits payable to or in respect of the member under this Section of the scheme; but

(b) in the case of a member any of whose service falls to be treated as capped transferred-in service, with such period as so falls counting as such service[^f00313].

(3) In paragraph (2)(a), “the appropriate period” means the period calculated in accordance with regulation 2.F.11 (calculation of transferred-in pensionable service).

(4) If the Scottish Ministers accept the payment from the member of a corresponding 1995 scheme, the relevant period of pensionable service must count when determining whether or not the member has reached 45 years of pensionable service for the purposes of regulation 2.A.4 (meaning of “pensionable service”: part-time service).

(5) In paragraph (4), “the relevant period” means the period calculated in accordance with regulation 2.F.11.

(6) The Scottish Ministers may not accept a transfer value payment if—

(a) it would be applied in whole or in part in respect of the member’s or the member’s spouse’s entitlement to a guaranteed minimum pension; and

(b) it is less than the amount required for that purpose, as calculated in accordance with guidance and tables prepared by the scheme actuary for the purposes of this paragraph.

(7) Paragraph (6) does not apply if the transfer would be paid under the public sector transfer arrangements.

(8) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.13.

Calculation of transferred-in pensionable service

2.F.11

(1) Subject to the following provisions of this regulation, the period of service that the member is entitled to count under regulation 2.F.10 (acceptance of transfer value payments) as the result of a transfer is to be calculated in accordance with any guidance and tables provided by the scheme actuary for that purpose.

(2) For the purposes of the calculation under paragraph (1), the member’s annual pensionable pay is to be taken to be the amount of that pay as at the day on which the member’s pensionable service begins (“the starting day”), unless paragraph (3) applies.

(3) If the transfer payment is received by the Scottish Ministers more than 12 months after the starting day, the member’s annual pensionable pay is to be taken to be the amount of that pay as at the day on which the transfer payment is received.

(4) Paragraph (3) does not apply if—

(a) a written statement estimating the pensionable service that the member would be entitled to count as result of the transfer was given to the member by the Scottish Ministers during the period of three months ending 12 months after the starting day; and

(b) the transfer payment is received by the Scottish Ministers less than three months after the date of the statement.

(5) If the transfer value payment is accepted under the public sector transfer arrangements, the period of pensionable service the member is entitled to count is to be calculated—

(a) in accordance with those arrangements; and

(b) by reference to the guidance and tables provided by the scheme actuary for the purposes of this paragraph, that are in use on the date that is used by the transferring scheme for calculating the transfer value payment.

(6) If the transfer value payment is accepted from a corresponding 2008 scheme, the period of pensionable service the member is entitled to count is the period that the member would be entitled to count if—

(a) the member’s employment to which that Section applied were NHS employment in respect of which the member was a member of this Section of the scheme; and

(b) the member’s contributions to that Section were contributions to this Section of the scheme.

(7) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.13.

Meaning of “capped transferred-in service”

2.F.12

(1) This regulation applies if—

(a) the Scottish Ministers accept a transfer value payment in respect of a member under a transfer to which the public sector transfer arrangements apply; and

(b) the service in respect of which the transfer is made was, or included, capped service in employment to which the scheme from which the transfer value payment is made (“the transferring scheme”) applied.

(2) For the purposes of this Part, the same proportion of the service that the member is entitled to count under regulation 2.F.10(2)(a) (acceptance of transfer value payments) as the capped service bears to the whole of the service in respect of which the transfer is made is capped transferred-in service.

(3) For the purposes of paragraph (1)(b), the service in respect of which the transfer is made was capped service so far as—

(a) in the case of service before 6th April 2006, the member was an active member of the transferring scheme whose pension under that Section in respect of the service was to be calculated by reference to remuneration limited in each tax year to the permitted maximum for that year within the meaning of section 590C(2) (earnings cap) of the Income and Corporation Taxes Act 1988[^f00314]; or

(b) in the case of service on or after 6th April 2006, the member was an active member of the transferring scheme whose pension under that Section in respect of the service was to be calculated by reference to remuneration limited in each tax year to an amount calculated in the same manner as the permitted maximum under that section was calculated for tax years ending before that date.

(4) For the purposes of paragraph (3), it does not matter whether, apart from the application of the limit, the member’s remuneration in any tax year would have exceeded the amount of the limit.

(5) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.13.

Public sector transfer arrangements

2.F.13

(1) This Chapter applies to a transfer where—

(a) the member is an active member of the 2015 Scheme;

(b) the member makes an application under regulation 2.F.8 for a transfer value payment in respect of some or all of the rights that have accrued to or in respect of the member under—

(i) an existing scheme listed in Schedule 5 to the 2013 Act;

(ii) an existing public body scheme listed in Schedule 10 to that Act;

(iii) another occupational pension scheme that participates in the Public Sector Transfer Club;

(c) the application under regulation 2.F.8 is made within one year beginning with the day the member became eligible to be an active member of the 2015 Scheme and before the member reaches the member’s normal pension age in the 2015 Scheme;

(d) the transfer value payment is made and accepted under the public sector transfer arrangements; and

(e) on the day the transfer is completed, paragraph 2 of Schedule 7 to the 2013 Act applies to the period of service in respect of which the transfer value payment is made.

(2) This Chapter also applies in the case of any other transfer to which the public sector transfer arrangements apply (not being a transfer referred to in paragraph (1)) as it applies in other cases, except to the extent that—

(a) any provision in this Chapter provides otherwise; or

(b) the arrangements themselves make different provision.

Bulk transfers-out

2.F.14

(1) This regulation applies if—

(a) the employment of one or more active members (“the transferring employees”) is transferred without the their consent to a new employer;

(b) on that transfer the transferring employees cease to be eligible to be active members of this Section of the scheme;

(c) after that transfer the transferring employees become active members of another occupational pension scheme (“the new employer’s scheme”);

(d) the Scottish Ministers have agreed special terms for the making of transfer value payments in respect of the transferring employees to the new employer’s scheme, after consultation with the scheme actuary; and

(e) the transferring employees have consented in writing to their rights being transferred in accordance with those terms.

(2) In the case of the transferring members or the transferred members, the transfer value payment to be paid—

(a) is not to be calculated in accordance with regulation 2.F.6 (calculating amounts of transfer value payments); and

(b) is such amount as the Scottish Ministers determine to be appropriate in accordance with the special terms after consulting the scheme actuary.

(3) This Chapter has effect with such modifications as are necessary to give effect to those terms.

(4) If the transfer is directly or indirectly attributable to an enactment, this Chapter has effect with such modifications as the Scottish Ministers consider necessary in consequence of the transfer.

(5) Where a member to whom this regulation applies is also a member to whom Part 3 applies, a bulk transfer under this regulation also operates as a transfer of that member’s rights under Part 3.

Bulk transfers-in

2.F.15

(1) This regulation applies if—

(a) the employment of one or more persons (“the transferred employees”) is transferred without their consent to a new employer;

(b) on that transfer the transferred employees cease to be active members of an occupational pension scheme (“the former employer’s scheme”);

(d) the Scottish Ministers have agreed special terms for the acceptance of transfer value payments in respect of the transferred employees from the former employer’s scheme, after consulting the scheme actuary; and

(e) the transferred employees have consented in writing to their rights being transferred in accordance with those terms.

(2) This Section of the scheme has effect with such modifications as are necessary to give effect to the terms mentioned in paragraph (1)(e).

(3) If the transfer is directly or indirectly attributable to an enactment, this Section of the scheme has effect with such modifications as the Scottish Ministers consider necessary in consequence of the transfer.

EU and other overseas transfers

2.F.16

(1) This regulation applies in the case of a member whose transfer is subject to transfer arrangements concluded with any scheme for the provision of retirement benefits established outside the United Kingdom.

(2) This Section of the scheme applies in relation to the member with such modifications as the Scottish Ministers consider necessary to comply with—

(a) the terms of those arrangements;

(b) any applicable provision contained in or made under any enactment; and

(c) the requirements to be met by a scheme registered under Chapter 2 (registration of pension schemes) of Part 4 of the 2004 Act.

Transfers across

Transfers across from the 1995 Section

2.F.17

(1) An active member who is entitled to have a cash equivalent value calculated in respect of the entirety of the member’s rights under the 1995 Section pursuant to regulation M7 (member’s right to transfer a preserved pension to the 2008 Section) of the 2011 Regulations, may apply to convert that cash equivalent value into rights under this Section of the scheme.

(2) An application under paragraph (1)—

(a) must be made in writing using an application form provided for the purpose by the Scottish Ministers;

(b) may only be made before the end of the period of three months beginning with the guarantee date established under regulation M7 of the 2011 Regulations;

(c) may only be made if the member has first been furnished with a statement of the pensionable service that the member will be entitled to count under this Section of the scheme if the application is accepted by the Scottish Ministers;

(d) must meet such other conditions as the Scottish Ministers may require; and

(e) is irrevocable.

(3) The statement mentioned in paragraph (2)(c) must—

(a) inform the member of the amount of pensionable service that will count under this Section of the scheme for the purposes of calculating benefits payable to or in respect of the member;

(b) inform the member of the amount of pensionable service that will count under this Section of the scheme when determining whether or not the member has reached 45 years of pensionable service for the purposes of regulation 2.A.3 (meaning of “pensionable service”); and

(c) be calculated in accordance with any guidance, tables and other relevant factors provided by the scheme actuary for that purpose.

(4) If the Scottish Ministers accept an application under paragraph (1)—

(a) the member is entitled to count the period of pensionable service mentioned in paragraphs (3)(a) and (b) for the purposes of calculating benefits payable to or in respect of the member under this Section of the scheme; and

(b) that period of pensionable service must be credited to the member on the day that the Scottish Ministers received the member’s application.

CHAPTER 2.G — RE-EMPLOYMENT AND REJOINING THE SCHEME

Preliminary

Application of Chapter 2.G

2.G.1

(1) Subject to paragraphs (4) to (7), this Chapter applies to persons who—

(a) have been active members of this Section of the scheme in respect of their service in an employment;

(b) have ceased to be employed in that employment and have become deferred members or pensioner members of this Section of the scheme because of their rights in respect of that service;

(d) become active members of this Section of the scheme in respect of their service in that employment.

(2) In this Part, a member to whom this Chapter applies is referred to as a “re-employed member”.

(3) In this Chapter, in relation to any re-employed member—

(a) the service referred to in paragraph (1)(a) is referred to as “the earlier service”; and

(b) the service referred to in paragraph (1)(d) is referred to as “the later service”.

(4) This Chapter also applies to members who—

(a) cease to be active members in respect of their service in an employment as the result of exercising the option under regulation 2.B.6 (opting out of this Section of the scheme); and

(b) later become active members in that or another employment,

as it applies to members who cease to be employed in the employment in which they are active members, and paragraph (3) must be read accordingly.

(5) This Chapter does not apply if the earlier service and the later service are treated as a single continuous period of pensionable service under regulation 2.A.5(6) (pensionable service: breaks in service).

(6) Regulation 2.G.4 (effect of re-employment on upper tier ill health pensions) applies whether or not the employment mentioned in paragraph (1)(c) is employment that qualifies the member to belong to this Section of the scheme.

(7) Regulation 2.G.6 (deferred pension becoming payable during NHS re-employment as a result of a transfer of undertaking) applies whether or not the deferred member becomes an active member in the NHS employment in which the deferred member is re-employed.

(8) If a re-employed member ceases to be an active member again, this Chapter applies again in respect of the later service as if it were the earlier service (and so on).

General rule: separate treatment of service etc. except where unfavourable to member

General rule: separate treatment of service etc.

2.G.2

(1) The general rule is that, in accordance with regulations 2.D.20 (dual capacity membership) and 2.E.26 (dual capacity membership: death benefits)—

(a) the re-employed member’s pensionable service in respect of the earlier service and the later service are treated separately; and

(b) the re-employed member’s reckonable pay in respect of the earlier service and the later service are determined separately.

(2) This regulation is subject to the provisions mentioned in regulations 2.D.20(4) and 2.E.26(5).

Exception to general rule in regulation 2.G.2

2.G.3

(1) The general rule in regulation 2.G.2 (general rule: separate treatment of service etc.) does not apply if—

(a) at the time that the member first becomes entitled to a pension under this Section of the scheme in respect of the earlier service or the later service; or

(b) if it is earlier, at the time of the member’s death,

in the opinion of the Scottish Ministers the benefits payable to or in respect of the member would be more valuable if that general rule were disregarded.

(2) Accordingly, in a case within paragraph (1)—

(a) the member’s pensionable service in respect of the earlier service and the later service is to be treated as one single continuous period;

(b) the member’s qualifying service in respect of the earlier service and the later service is to be treated as one single continuous period;

(d) the member’s reckonable pay in respect of the later period is to be determined by reference to the earlier period as well as the later period[^f00315].

(3) This regulation is subject to regulation 2.G.6 (deferred pension becoming payable during NHS re-employment as a result of a transfer of undertaking).

Special rules about re-employment of ill health pensioners

Effect of re-employment on upper tier ill health pensions

2.G.4

(1) This regulation applies to a member who is entitled to an upper tier ill health pension under regulation 2.D.8 (early retirement on ill health: active members and non-contributing members) in respect of earlier service and who—

(a) did not opt to exchange that pension for a lump sum in accordance with regulation 2.D.15 (option for members in serious ill health to exchange whole pension for lump sum); and

(b) has re-entered further employment (the “further employment”).

(2) Subject to paragraphs (3) and (4), the member ceases to be entitled to the upper tier ill health pension under regulation 2.D.8 and becomes entitled to a lower tier ill health pension under that regulation.

(3) In a case where the further employment is—

(a) not NHS employment; and

(b) an excluded employment,

paragraph (2) does not apply.

(4) In a case where the further employment is—

(a) NHS employment; and

(b) an excluded employment,

paragraph (2) does not apply during the initial period.

(5) As regards a further employment in NHS employment—

(a) paragraph (2) applies from the first lower tier ill health pension payment date which falls after the first anniversary of the member’s re-entry into NHS employment, whether or not that day is part of a continuous period of further NHS employment beginning with entry into that employment; and

(b) the member may not rejoin this Section of the scheme in respect of that employment or any other NHS employment until after the first anniversary of the member’s re-entry into NHS employment, whether or not that or any other NHS employment is an excluded employment.

(6) For the purposes of this regulation—

(a) an employment is an excluded employment at any time in a tax year, in relation to a member, if the member’s earnings at that time for the purposes of national insurance from the employment and any other employments are such that the lower earnings limit for that year is not exceeded;

(b) for the purposes of paragraph (2) an employment that has been an excluded employment in a tax year is not to be treated as ceasing to be such an employment until the first day following the end of the pension pay period for the upper tier ill health pension in which the limit described in sub-paragraph (a) is first exceeded; and

(c) “the initial period” means the period of 12 months beginning with the day on which the member first enters an employment which results in this regulation applying.

(7) A member who, before attaining age 65, has ceased to be entitled to an upper tier ill health pension under paragraph (2), and who—

(a) is in further NHS employment and ceases to be employed at all during the initial period; or

(b) is in further employment that is not NHS employment and ceases to be employed in that further employment within a period of one year beginning with the day on which that further employment ceased to be an excluded employment,

may apply to the Scottish Ministers under this paragraph to become entitled to an upper tier ill health pension.

(8) An application under paragraph (7)—

(a) where paragraph (7)(a) applies, must—

(i) state that the member has ceased to be employed at all;

(ii) be made within the initial period; and

(iii) be made in writing and be accompanied by evidence from a registered medical practitioner[^f00316] that the member meets the condition in regulation 2.D.8(3)(a) (early retirement on ill health: active members and non-contributing members); and

(b) where paragraph (7)(b) applies, must—

(i) state that the member has ceased to be employed at all;

(ii) be made within a period of one year beginning with the day on which that employment ceased to be an excluded employment; and

(iii) be made in writing and be accompanied by evidence from a registered medical practitioner that the member meets the condition in regulation 2.D.8(3)(a).

(9) If on an application under paragraph (7) the Scottish Ministers are satisfied that the member meets the condition in regulation 2.D.8(3)(a), from the day following that on which the member’s last employment ceased—

(a) the member ceases to be entitled to the lower tier ill health pension under regulation 2.D.8; and

(b) becomes entitled to an upper tier ill health pension under that regulation in respect of the earlier service.

(10) A member who falls within paragraph (1) must—

(a) notify the Scottish Ministers if the member is in NHS employment at the end of the initial period;

(b) notify the Scottish Ministers if the member’s aggregate earnings for the purposes of national insurance from employments held in a tax year are such that the lower earnings limit for that year is exceeded; and

(c) provide the Scottish Ministers or any other person specified by the Scottish Ministers with such further information as the Scottish Ministers specify concerning any further employment.

(11) This regulation is subject to regulation 2.G.5 (re-employed lower tier ill health pensioners).

Re-employed lower tier ill health pensioners

2.G.5

(1) This regulation applies to re-employed members who are entitled to a lower tier ill health pension under regulation 2.D.8 (early retirement on ill health: active members and non-contributing members) in respect of the earlier service.

(2) For the purposes of determining whether a member can count 45 years of pensionable service for any purpose, the earlier service and the later service are aggregated.

(3) If the re-employed member became entitled to a lower tier ill health pension for the earlier service, and on the termination of the later service the member becomes entitled to—

(a) a lower tier ill health pension; or

(b) an upper tier ill health pension,

under regulation 2.D.8 in respect of the later service, the re-employed member is entitled to the benefits set out in paragraph (4).

(4) Subject to paragraph (5), the benefits mentioned in paragraph (3) are—

(a) the member’s original lower tier ill health pension in respect of the member’s earlier service; and

(b) a lower tier ill health pension or, as the case may be, an upper tier ill health pension in respect of the later service.

(5) If the re-employed member—

(a) ceases to be entitled to a lower tier ill health pension in respect of the earlier service;

(b) becomes entitled to an upper tier ill health pension in respect of that earlier service in accordance with regulation 2.D.9(3) (re-assessment of entitlement to an ill health pension); and

(c) on the termination of the later service, the member becomes entitled to a lower tier ill health pension or, as the case may be, an upper tier ill health pension in respect of that later service,

the re-employed member is entitled to the benefits set out in paragraph (6).

(6) The benefits mentioned in paragraph (5) are—

(a) an upper tier ill health pension paid in accordance with regulation 2.D.9 in respect of the member’s earlier service; and

(b) a lower tier ill health pension in respect of the member’s later service.

Special rule for members transferred out on transfer of undertaking

Deferred pension becoming payable during NHS re-employment as a result of a transfer of undertaking

2.G.6

(1) This regulation applies if a re-employed member becomes entitled to a pension under regulation 2.D.1 (normal retirement pensions) or 2.D.4 (early payment of pension with actuarial reduction) by virtue of the application of regulation 2.D.13(2)(a) (exceptions to requirement that NHS employment must have ceased).

(2) Regulation 2.G.3 (exception to general rule) does not apply.

(3) Subject to paragraph (4), any benefits payable in respect of the later service are calculated without regard to pensionable service in respect of the earlier service.

(4) For the purposes of determining whether a member can count 45 years pensionable service for any purpose, the earlier service and the later service are aggregated.

CHAPTER 2.H — ABATEMENT

Application of Chapter 2.H

2.H.1

(1) This Chapter applies if—

(a) a person who is a pensioner member of this Section of the scheme is employed in NHS employment;

(b) the person’s employment is not employment to which the person was transferred as a result of a transfer of an undertaking to the person’s employer;

(i) regulation 2.D.8 (early retirement on ill health: active members and non-contributing members);

(ii) regulation 2.D.10 (early retirement on ill health: deferred members); or

(iii) regulation 2.D.11(1)(d)(ii) (early retirement on termination of employment by employing authority) in a case where the Scottish Ministers certified that the member’s employment was terminated in the interests of the efficiency of the service in which the member was employed; and

(d) the person has not reached age 65.

(2) In this Chapter, “NHS employment” includes—

(a) employment with an employer in respect of whom a direction has been made under section 7 of the Superannuation (Miscellaneous Provisions) Act 1967[^f00317];

(b) employment to which regulations made under section 10 of the Superannuation Act 1972[^f00318] and having effect in England and Wales apply;

(c) employment to which regulations made under article 12 of the Superannuation (Northern Ireland) Order 1972[^f00319] apply;

(d) employment commencing on or before 31st March 2012 to which a scheme made under section 2 of the Superannuation Act 1984[^f00320] (an Act of Tynwald) applies; and

(e) employment with an employer with whom an agreement has been made under section 235 (superannuation of officers of certain hospitals) of the 2006 Act.

(3) Subject to paragraph (4), in this Chapter—

(a) a person to whom this Chapter applies is referred to as an “employed pensioner”;

(b) the pension to which the employed pensioner is entitled is referred to as the “old service pension”;

(d) the employment in which the employed pensioner is employed is referred to as the “new employment”.

(4) This Chapter applies whether or not the person is an active member of this Section of the scheme in the new employment.

Information

2.H.2

(1) A person who becomes an employed pensioner must—

(a) inform the person’s employer in the new employment, and any other person that the Scottish Ministers may specify, that the old service pension is payable; and

(b) where requested, provide any information about the person’s relevant income in the new employment to the Scottish Ministers or to any other person that the Scottish Ministers may specify.

(2) A person who ceases to be an employed pensioner in one new employment and becomes an employed pensioner in another new employment must—

(a) inform the person’s employer in the other new employment, and any other person that the Scottish Ministers may specify, that the old service pension is payable; and

(b) where requested, provide any information about the person’s relevant income in the new employment to the Scottish Ministers or to any person that the Scottish Ministers may specify.

(3) In this regulation “relevant income” has the meaning given in regulation 2.H.4.

Reduction of pension

2.H.3

(1) If the condition in paragraph (2) is met, the amount of the old service pension for any financial year is to be reduced.

(2) The condition is that the employed pensioner’s relevant income for the financial year exceeds the employed pensioner’s previous pay.

(3) The amount of the reduction under paragraph (1) is equal to that excess but cannot exceed the enhancement amount.

(4) In this regulation “relevant income” and “enhancement amount” have the meanings given in regulation 2.H.4.

(5) In this regulation “previous pay” has the meaning given in regulation 2.H.5.

(6) For the purpose of calculating the reduction to be made under paragraph (1) in respect of any part of a financial year, the amount of the member’s previous pay is to be reduced proportionately.

(7) If the member has a guaranteed minimum pension under section 14 of the 1993 Act in relation to the old service pension, nothing in this regulation requires the reduction of the old service pension below the amount of the member’s guaranteed minimum pension in relation to it.

Meaning of “relevant income”

2.H.4

(1) The employed pensioner’s relevant income for a financial year is the aggregate of—

(a) the amount of pay received by the employed pensioner during that year from the new employment (assuming, in any case where the employed pensioner is not an active member of this Section of the scheme in the new employment, that the employed pensioner is such a member); and

(b) the enhancement amount in relation to the old service pension.

(2) The enhancement amount, in relation to an old service pension, is the difference between—

(a) the amount of that pension for that year; and

(b) the amount that that pension would have been had it been payable under regulation 2.D.4 (early payment of pension with actuarial reduction).

(3) If the old service pension is payable under regulation 2.D.8 (early retirement on ill health: active members and non-contributing members) or 2.D.10 (early retirement on ill health: deferred members) to an employed pensioner who had not reached age 55 at the time when entitlement to the pension arose, for the purposes of paragraph (2)(b)—

(a) the fact that entitlement to a pension under regulation 2.D.4 depends on reaching that age is ignored; and

(b) the employed person’s actual age at the relevant time is taken into account in determining the reduction to be made under regulation 2.D.4(2).

(4) If the old service pension is an upper tier ill health pension, for the purposes of paragraph (2)(b), only the employed pensioner’s actual pensionable service at the time when entitlement to the pension arose is taken into account in determining the amount that would have been payable under regulation 2.D.4.

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